2 July 2023 — 1708 mdt

…the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause [of the 14th amendment to the Constitution]. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. [Majority opinion by Roberts, page 39.]

In the case of the two schools at the center of this Supreme Court decision, admissions officers initially evaluated students on a number of categories. Harvard used six: academic, extracurricular, athletic, school support, personal, and overall. Then, after the officers identified an initial pool of applicants who were all qualified for admission, they cut down the list to a final class. At Harvard, those on the list to be cut were evaluated on four criteria: legacy status, recruited athlete status, financial aid eligibility, and race.

Today, the Supreme Court ruled that considering race as a factor in that categorical fashion is unconstitutional.

The court did not rule that race could not be considered at all. In the majority decision, Chief Justice John Roberts wrote that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

How much this will matter for colleges and universities is unclear. Journalist James Fallows pointed out that there are between 3,500 and 5,500 colleges in the U.S. and all but 100 of them admit more than 50% of the students who apply. Only about 70 admit fewer than a third of all applicants. That is, according to a study by the Pew Research Center, “the great majority of schools, where most Americans get their postsecondary education, admit most of the people who apply to them.”

Consider the path the court stumbled along to reach Thursday’s constitutionally correct ruling, one that reveals how unhelpful its prior rulings have been. In Bakke (1978), a fractured court held that in order to survive judicial “strict scrutiny,” racial preferences in admissions must be narrowly tailored to achieve only one permissible “compelling” interest: student body “diversity.”

Until Thursday, the court had flinched from saying that such diversity — as defined by universities, which simply need to assert its benefits — is so important that it justifies ignoring the 14th Amendment. Justice Lewis F. Powell Jr.’s controlling opinion in Bakke said a university should be free “to make its own judgments as to education,” including “the selection of its student body.” The court thereby made a high principle of deferring to academia’s judgment about the necessity for racialist diversity policies.

There is a paucity of empirical evidence establishing what kind of diversity produces what kind of improved educational outcomes. Under the regnant ideology in academia, evidence is considered unnecessary. The benefits of (undefined) diversity are assumed. And the court-created “educational benefits” exception to the equal protection guarantee has meant that the diversity rationale for racial preferences is forever.

Freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.[Italics added.]

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair.

Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.

For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities — physical, mental and spiritual, and to pursue their individual happiness.

To this end equal opportunity is essential, but not enough, not enough. Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family that you live with, and the neighborhood you live in — by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child, and finally the man.

PROGRESS FOR SOME This graduating class at Howard University is witness to the indomitable determination of the Negro American to win his way in American life.

The number of Negroes in schools of higher learning has almost doubled in 15 years. The number of nonwhite professional workers has more than doubled in 10 years. The median income of Negro college women tonight exceeds that of white college women. And there are also the enormous accomplishments of distinguished individual Negroes--many of them graduates of this institution, and one of them the first lady ambassador in the history of the United States.

These are proud and impressive achievements. But they tell only the story of a growing middle class minority, steadily narrowing the gap between them and their white counterparts.

A WIDENING GULF But for the great majority of Negro Americans-the poor, the unemployed, the uprooted, and the dispossessed — there is a much grimmer story. They still, as we meet here tonight, are another nation. Despite the court orders and the laws, despite the legislative victories and the speeches, for them the walls are rising and the gulf is widening.

Here are some of the facts of this American failure.

Thirty-five years ago the rate of unemployment for Negroes and whites was about the same. Tonight the Negro rate is twice as high.

In 1948 the 8 percent unemployment rate for Negro teenage boys was actually less than that of whites. By last year that rate had grown to 23 percent, as against 13 percent for whites unemployed.

Between 1949 and 1959, the income of Negro men relative to white men declined in every section of this country. From 1952 to 1963 the median income of Negro families compared to white actually dropped from 57 percent to 53 percent.

In the years 1955 through 1957, 22 percent of experienced Negro workers were out of work at some time during the year. In 1961 through 1963 that proportion had soared to 29 percent.

Since 1947 the number of white families living in poverty has decreased 27 percent while the number of poorer nonwhite families decreased only 3 percent.

The infant mortality of nonwhites in 1940 was 70 percent greater than whites. Twenty-two years later it was 90 percent greater.

Moreover, the isolation of Negro from white communities is increasing, rather than decreasing as Negroes crowd into the central cities and become a city within a city.

Of course Negro Americans as well as white Americans have shared in our rising national abundance. But the harsh fact of the matter is that in the battle for true equality too many — far too many — are losing ground every day.

THE CAUSES OF INEQUALITY We are not completely sure why this is. We know the causes are complex and subtle. But we do know the two broad basic reasons. And we do know that we have to act.

First, Negroes are trapped — as many whites are trapped — in inherited, gate-less poverty. They lack training and skills. They are shut in, in slums, without decent medical care. Private and public poverty combine to cripple their capacities.

We are trying to attack these evils through our poverty program, through our education program, through our medical care and our other health programs, and a dozen more of the Great Society programs that are aimed at the root causes of this poverty.

We will increase, and we will accelerate, and we will broaden this attack in years to come until this most enduring of foes finally yields to our unyielding will.

But there is a second cause--much more difficult to explain, more deeply grounded, more desperate in its force. It is the devastating heritage of long years of slavery; and a century of oppression, hatred, and injustice.

SPECIAL NATURE OF NEGRO POVERTY For Negro poverty is not white poverty. Many of its causes and many of its cures are the same. But there are differences-deep, corrosive, obstinate differences--radiating painful roots into the community, and into the family, and the nature of the individual.

These differences are not racial differences. They are solely and simply the consequence of ancient brutality, past injustice, and present prejudice. They are anguishing to observe. For the Negro they are a constant reminder of oppression. For the white they are a constant reminder of guilt. But they must be faced and they must be dealt with and they must be overcome, if we are ever to reach the time when the only difference between Negroes and whites is the color of their skin.

Nor can we find a complete answer in the experience of other American minorities. They made a valiant and a largely successful effort to emerge from poverty and prejudice.

The Negro, like these others, will have to rely mostly upon his own efforts. But he just can not do it alone. For they did not have the heritage of centuries to overcome, and they did not have a cultural tradition which had been twisted and battered by endless years of hatred and hopelessness, nor were they excluded — these others — because of race or color — a feeling whose dark intensity is matched by no other prejudice in our society.

Nor can these differences be understood as isolated infirmities. They are a seamless web. They cause each other. They result from each other. They reinforce each other.

Much of the Negro community is buried under a blanket of history and circumstance. It is not a lasting solution to lift just one corner of that blanket. We must stand on all sides and we must raise the entire cover if we are to liberate our fellow citizens.